People v. Brewster

• Citation: 473 N.Y.S.2d 984,100 A.D.2d 134
• Parties: The PEOPLE, etc., Appellant, v. Leonard BREWSTER, Tromaine Johnson and Felix Alfonso, Respondents.
• Decision Date: 12 March 1984
• Court: New York Supreme Court Appellate Division

Page 984

473 N.Y.S.2d 984

100 A.D.2d 134

The PEOPLE, etc., Appellant, v. Leonard BREWSTER, Tromaine Johnson and Felix Alfonso, Respondents.

Supreme Court, Appellate Division Second Department.

March 12, 1984.

John J. Santucci, Dist. Atty., Kew Gardens (Richard G. Denzer, Kew Gardens, of counsel), for appellant.

John F. Clennan, Selden, for respondent Leonard Brewster.

Joseph F. DeFelice, Richmond Hill, for respondent Felix Alfonso.

Before LAZER, J.P., and BRACKEN, O'CONNOR, BROWN and RUBIN, JJ.

BRACKEN, Justice.

This appeal presents for resolution the question of whether an indictment must be dismissed where the evidence of identity before the Grand Jury was based solely upon prior photographic identifications, and where the grand jurors were not informed of that fact.

The essential facts are not in dispute. As reflected in the opinion of Criminal Term (People v. Brewster, 115 Misc.2d 26, 453 N.Y.S.2d 336), no corporeal identification was ever made of any of the defendants by the witnesses in this case. The witnesses, however, did identify defendants from photographs at the police station within several days after the crime. Each witness thereafter testified before the Grand Jury and "was asked, in substance, 'Did there come a time when you made an identification of the person who committed the crime?' " (People v. Brewster, supra, p. 27, 453 N.Y.S.2d 336). Each witness answered affirmatively, but the Grand Jury was never informed that the witnesses had identified only photographs of the defendants. At a subsequent Wade hearing, the testimony disclosed that the sole means of identification of the defendants had been from photographs. Defendants thereupon moved to suppress the identification testimony (CPL 710.20, subd. 6) and to dismiss the indictment (CPL 210.35, subd. 5). Criminal Term denied the motion to suppress but granted the motion to dismiss, holding that evidence of identity derived from a photographic identification was incompetent, and that introduction of such evidence without any explanation to the grand jurors as to its source impaired the integrity of the Grand Jury and resulted in prejudice to the defendants.

For the reasons that follow, the order must be reversed insofar as appealed from, on the law, the motion to dismiss must be denied, and the indictment reinstated.

While both the United States Constitution and the New York State Constitution require the indictment of a Grand Jury as a prerequisite to a felony prosecution (U.S. Const., 5th Amdt.; N.Y. Const., art. I, § 6), neither prescribes the kind or quantum of evidence upon which a Grand Jury may act (Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397; Matter of Miranda v. Isseks, 41 A.D.2d 176, 341 N.Y.S.2d 541). In fact, an indictment based entirely upon hearsay or other incompetent evidence is sufficient for constitutional purposes (Costello v. United States, supra). Thus, resolution of the issue before us turns entirely upon construction of the various New York statutes governing the procedures of the Grand Jury and the rules of evidence in criminal proceedings.

The relevant statutes pertaining to Grand Jury practice are found in CPL article 190. CPL 190.65 (subd. 1) sets forth the standard of proof required to support an indictment of the Grand Jury:

"Subject to the rules prescribing the kinds of offenses which may be charged in an indictment, a grand jury may indict a person for an offense when (a) the evidence before it is legally sufficient to establish that such person committed such offense * * * and (b) competent and admissible evidence before it provides reasonable cause to believe that such person committed such offense".

The terms "legally sufficient evidence" and "reasonable cause to believe such person committed such offense" are further defined in CPL 70.10 as follows:

"Standards of proof; definitions of terms.

"The following definitions are applicable to this chapter:

"1. 'Legally sufficient evidence' means competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof; except that such evidence is not legally sufficient when corroboration required by law is absent.

"2. 'Reasonable cause to believe that a person has committed an offense' exists when evidence or information which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that such person committed it. Except as otherwise provided in this chapter, such apparently reliable evidence may include or consist of hearsay".

Reading these sections together, an indictment is authorized where (1) competent evidence, accepted as true, establishes each and every element of the offense charged and defendant's commission thereof, and (2) competent and admissible evidence which appears reliable discloses facts or circumstances which are collectively of such weight and persuasiveness as to convince a person of ordinary intelligence, judgment and experience that it is reasonably likely that such offense was committed and that defendant committed it.

Clearly, evidence of identity derived from a photographic identification may establish, if accepted as true, defendant's commission of the offense charged, and may furnish reasonable cause to believe that defendant committed the offense. Thus, such evidence may be viewed as legally sufficient to support an indictment under CPL 190.65 (subd. 1) if such evidence is competent and admissible.

The term "competent evidence" is defined as relevant evidence which is admissible in a particular action, i.e., relevant evidence which is not subject to the operation of any exclusionary rule (Richardson, Evidence [Prince, 10th ed], § 4; see, also, 1 Bender's New York Evidence, § 1). Thus, for our purposes "competent" evidence is, by definition, "admissible" evidence.

To determine whether evidence of identity based upon a photographic identification is "competent" and "admissible" for Grand Jury purposes within the meaning of CPL 190.65, we must next examine CPL 190.30, which prescribes the rules of evidence applicable to Grand Jury proceedings. CPL 190.30 (subd. 1) provides:

"Except as otherwise provided in this section, the provisions of article sixty governing rules of evidence and related matters with respect to criminal proceedings in general, are, where appropriate, applicable to grand jury proceedings" (emphasis supplied).

Those exceptions as alluded to in subdivision 1 are contained in subdivisions 2 and 3 and allow the reception of scientific reports and affidavits as prima facie evidence of the facts contained therein.

The language of subdivision 1 makes the provisions of CPL article 60 applicable to Grand Jury proceedings, subject to two separate and distinct qualifications: "except as otherwise provided in this section" and "where appropriate". The first qualification ("except as otherwise provided in this section") establishes that the rules of evidence governing criminal proceedings contained in CPL article 60 shall apply to Grand Jury proceedings except to the extent that subdivisions 2 and 3 of CPL 190.30 (proof by report and/or affidavit) provide otherwise. The second qualification ("where appropriate") establishes that even where the provisions of CPL 190.30 do not pre-empt the general evidentiary rules of CPL article 60, the rules of CPL article 60 shall only be applied to Grand Jury proceedings insofar as it is appropriate to do so. We must therefore consider the general rules of CPL article 60 governing admissibility of identification evidence in criminal proceedings, and determine the extent to which it is "appropriate" to apply those rules to proceedings before the Grand Jury.

CPL 60.30 governs the extent to which a witness in a criminal proceeding who has identified a defendant may testify to a previous identification:

"Rules of evidence; identification by means of previous recognition, in addition to present identification.

"In any criminal proceeding in which the defendant's commission of an offense is in issue, a witness who testifies that (a) he observed the person claimed by the people to be the defendant either at the time and place of the commission of the offense or upon some other occasion relevant to the case, and (b) on the basis of present recollection, the defendant is the person in question and (c) on a subsequent occasion he observed the defendant, under circumstances consistent with such rights as an accused person may derive under the constitution of this state or of the United States, and then also recognized him as the same person whom he had observed on the first or incriminating occasion, may, in addition to making an identification of the defendant at the criminal proceeding on the basis of present recollection as the person whom he observed on the first or incriminating occasion, also describe his previous recognition of the defendant and testify that the person whom he observed on such second occasion is the same person whom he had observed on the first or incriminating occasion. Such testimony constitutes evidence in chief".

This section was enacted in 1970 (L.1970, ch. 996, § 1; amended L.1977, ch. 479, § 2) and was derived from section 393-b of the Code of Criminal Procedure. Prior to the enactment of section 393-b in 1927 (L.1927, ch. 336), it had been held to be reversible error to admit testimony of a witness that he had previously identified the accused, regardless of whether the prior identification had been corporeal or photographic, since such testimony constituted a prior consistent statement and thus hearsay (see, e.g., People v. Jung Hing, 212 N.Y. 393, 106 N.E. 105). Section 393-b was enacted in 1927 and provided as follows:

" § 393-b. Testimony of previous...